JUDGMENT 1. - This appeal Under section 374(2) of the Code of Criminal Procedure, 1973 (the Cr.P.C.) is directed against the judgment and order dated June 20, 1994, whereby the learned Addl. Session Judge, Baran, in Sessions Case No. 4/94 (old No. 239/93), convicted and sentenced the appellants as under: Name of the appellant Offence convicted of Sentence awarded Mukut Bihari 302 IPC Imprisonment for life and fine of Rs.100/- 323 IPC Rl for six months. Prem Chand Sita Ram 323 IPC Rl for six months each. The sentences of imprisonment awarded to Mukut Bihari appellant were directed to run concurrently. 2. The relevant facts are these : The parties to this unfortunate litigation come form one and the same family having a common ancestor. They are Meena by caste and agriculturists by profession. Though living separately and cultivating their partitioned land also separately they had some dispute between them over area of some fields and that is why bad blood appears to have taken over their good and common blood. It is in this backdrop that the incident as alleged by the prosecution, occurred on October 17, 1993 at about 6.00 PM in the jungle of village Ram Bilas, Police Station Nahragarh where Smt. Samundra Bai W/o Bhagwan Singh (PW 6). the deceased, was cutting grass in the field. Bhagwan Singh himself was working in another field nearby. His brothers, the three appellants, their mother Smt. Phoolan Bai (co- accused since acquitted by the trial court) and appellant Sita Rams wife Smt. Parwati Bai (another co-accused since acquitted) were also working in other field nearby. It is alleged that Smt. Phoolan Bai and Smt. Parwati Bai reached the place where the deceased was cutting grass and forbade her from cutting grass at that place. The ladies on both sides picked up a quarrel. Smt. Phoolan Bai then left for the field where the present appellants were working. All the three appellants, with lathis and lodi (stick) in their hands, reached there. Mukut Bihari appellant gave a lathi (lori) blow on the head of the deceased causing her fall on the ground. Sita Ram and Prem Chand are also stated to have given one blow each with their lathies on the head of the deceased. Smt. Phoolan with her sickle and Smt. Parwati with Dhelas are also alleged to have caused injuries to the deceased. Sita Ram and Prem Chand are also stated to have given one blow each with their lathies on the head of the deceased. Smt. Phoolan with her sickle and Smt. Parwati with Dhelas are also alleged to have caused injuries to the deceased. When Bhagwan Singh rushed to the place and tried to save his wife from the armed assault of the appellants, he too was beaten by them. The alarm raised by Bhagwan Singh attracted PW 1 Smt. Choti Bai, PW 3 Brij Mohan, PW 4 Urmila Bai, PW 5 Hari Singh, PW 9 Smt. Sugandhi Bai and P 2 Subriya. who are alleged to be working at their fields at that time, to the place of occurrence. The appellants and the lady accused, since acquitted, then retired. PW 8 Om Prakash and PW 12 Mangi Lal arranged for a bullock cart and took the deceased first to the village and therefrom to the police station. PW 7 Satya Narain and Bhagwan Singh accompanied the cart from the village. Though PW 8 Om Prakash shifted the injured Samundra Bai in a tractor to take her alive to the police station but the deceased gave up her struggle for life on the way. Bhagwan Singh lodged the FIR (Ex.P 5) at police station at 10.00 PM on 17.10.93 whereupon PW Kanhya Lal, the then Station House Officer at Police Station Nahragarh, registered Crime No. 62 of 1993 Under section 147, 148, 149, 307, 302 IPC against the present aDpellants and the two lady accused, Smt. Phoola Bai and Smt. Parwati Bai, since acquitted and commenced investigation. 3. Dr. Ajai Johri (PW 18), the then Medical Officer 1/C Govt. Dispensary, Nahargarh conducted the autopsy on the dead body of the deceased Smt. Samudra Bai at 9.00 AM on 18.10.93 and noted that she was a young lady with well built body and 28 years of age. At the time of the post mortem examination, she was noticed to have bled from both of her ears, nose and mouth. She was having a swelling with haematoma 10 cm x 10 cm on the frontal area of her skull, one lacerated would 3 cm x 1 cm bone deep on centre of her head 7 cm above the right ear, one bruise 8 cmx3 cm on right infra mammary area of chest, one incised wound 3 cmx2 cmx 1 cm, oblique, 5 cm. above the wrist, on volar aspect of left fore-arm and an abrasion 2 cm x 1 cm, superficial, on lateral aspect of left knee at the level of upper pole of patella. All the injuries were ante mortem in duration caused with blund weapon except the incised wound which was caused with some sharp edged weapon. On opening the dead body of the deceased fracture of frontal bone extending from mid suture line to the base of skull, both sides, with sub-dural haematoma 10 cm x 10 cm, was found present on right parital area, pressing over brain tissues. Dr. Johri opined that the head injury had led to sub-dural haematoma and fracture of the base of the skull of the deceased resulting in coma and death. 4. Dr. Johri examined Bhagwan Singh (PW.6) at 10.00 PM on 18.10.93, found three swellings, three bruises and one lacerated wound on his person. Those injuries had been caused to Bhagwan Singh with some blunt weapon within the last 24 hours. 5. In the course of investigation some lathies were recovered from the possession of the appellants but such weapons do not stand connected with the crime and, therefore, need not be discussed. 6. After having completed the investigation the present appellants and the two lady accused were chargesheeted in the court of the concerned Magistrate who committed the case to the court of Sessions at Baran. On transfer of the case to him the learned Addl. Sessions Judge, Baran charged all the five accused with the offence Under sections 147, 148, 302, 302 r.w 149 and 323 r.w. 149 IPC. The accused took no specific plea, save that or strained relations, in their defence. The learned Sessions Judge held that the complicity of the lady accused in the case was not established He further held that the present appellants were not the members of an unlawful assembly as Sita Ram and Prem Chand accused did not have a common object with Mukut Bihari appellant to cause injuries to Smt. Samundra and, therefore, each of the appellant was responsible for his individual act and it was Mukut Bihari appellant alone who had caused a fatal injury to the deceased which resulted in her death. The learned trial Judge further held that all the three appellants had caused simple hurt with blunt weapons to Bhagwan Singh (PW. The learned trial Judge further held that all the three appellants had caused simple hurt with blunt weapons to Bhagwan Singh (PW. 6) and therefore, all of them were guilty of offence Under section 323 IPC. Holding thus the learned Judge acquitted the lady accused of all the charges framed against them, he further acquitted the present appellants of the charges Under sections 147 and 148 IPC but convicted Mukut Bihari appellant for substantive offences Under sections 302 and 323 IPC and Sita Ram and Prem Chand appellants for offence Under section 323 IPC only. The State has preferred no appeal against the acquittals of the accused persons, including the present appellants, in that manner. 7. Mr. A.K. Gupta, the learned counsel for the appellants, urged that in view of the findings recorded by the learned trial Judge and the state preferring no appeal against such findings and consequent acquittals of the lady accused of all the charges and of Sita Ram and Prem Chand appellants of the substantive as well as constructive liability for causing the death of Smt. Samundra, deceased, Mukut Bihari appellant also could not have been convicted for causing the death of the deceased. Mr. Gupta submitted that the learned trial Judge held that all the other witnesses of the occurrence save Bhagwan Singh were unreliable witnesses and that Bhagwan Singh himself was though an injured person yet he was a partisan and interested witness and. therefore, should not have been believed as against Mukut Bihari appellant when his testimony had been rejected as against Sita Ram and Prem Chand, appellants. Mr. Gupta further submitted that as per statement of the prosecution witnesses at least three injuries with blunt weapons were caused on the head of the deceased and three injuries so caused to the deceased on head were attributed to each of the three appellants. Therefore, when it was not possible to say conclusively that the fatal injury was caused by none else but Mukut Bihari appellant it would not be correct in law and on facts, urged the learned counsel, to hold Mukut Bihari appellant guilty of the offence under section 302 IPC for causing the death of the deceased. In the alternative Mr. Therefore, when it was not possible to say conclusively that the fatal injury was caused by none else but Mukut Bihari appellant it would not be correct in law and on facts, urged the learned counsel, to hold Mukut Bihari appellant guilty of the offence under section 302 IPC for causing the death of the deceased. In the alternative Mr. Gupta urged that it was a sudden fight, as found by the learned trial Judge and Mukut Bihari did not intend to cause death of the deceased or to cause to her the particular injury which was considered sufficient to cause death or resulted in causing her death, therefore, the offence committed by Mukut Bihari appellant against the deceased does not travel beyond the offence Under section 325 or at the most Under section 304 Part-II of the Indian Penal Code. In support of his arguments, Mr. Gupta relied upon certain authorities of this court as well of the Apex Court. 8. Mr. R.S. Agarwala, the learned Public Prosecutor, on the other hand, made reference to the decision of the Apex Court in Vira Singhs case and submitted that Mukut Bihari appellant has rightly been held guilty Under section 302 IPC. 9. On giving due consideration to the rival submissions advanced before us we are of the opinion that in the facts and under the circumstances of this case the learned trial Judge committed no error in law or on facts to have acquitted all the accused in this case of the offence of rioting and to have fastened the criminal liability on the appellants to the extent of the individual acts, constituting particular offences, done by each of them. The nature of the offence actually committed by Mukut Bihari appellant apart, it was not proved by the prosecution that all the five accused, as initially challaned by the police or, for that matter, the present three appellants, were the member of an unlawful assembly formed with the common object of causing death of Smt. Samundra deceased or they had the knowledge or had reasons to have such knowledge that one or the other member of such assembly would or was likely to cause her death. The genesis of the incident in this case lay in the routine exchange of hot words between the females of one and the same family due to the already strained relations between them over the distribution of the familys agricultural land. With reference to the statement of PW.6 Bhagwan Singh the learned trial Judge has held that the kernel of dispute between the brothers, arrayed on two sides, was the field known as tatoo wala wherein the occurrence had taken place. After discussing the relevant evidence on the point the learned trial Judge found this fact well established that late Sri Ram Karan was survived by his five sons viz, PW.8 Om Prakash, PW.6 Bhagwan Singh. Mukut Bihari, Prem Chand and Sita Ram, Smt. Phoolan is their widowed mother. Smt. Samundra Bai deceased (wife of Bhagwan Singh PW.6) and PW.4 Urmila Bai W/o. PW.8 Om Prakash are real sisters. PW 5 Hari Singh is Om Prakashs son. Smt. Parwati Bai is the wife of Sita Ram appellant. Bhagwan Singh had separated from the family about 5 or 6 years back and about a year before the incident in this case the familys agricultural land was also partitioned between Bhagwan Singh on the one hand and other brothers and their mother on the other. The learned trial Judge has further found that though Bhagwan Singh was apparently satisfied with the partition yet PW.8 Om Prakash, the eldest brother, used to instigate Bhagwan Singh to take his share of land in the Tatoo Wala field. Bhagwan began to assert his share in the said field and he further asserted that on intervention by one Devi Lal, his son Bhagat and Khakhade waley Phoophaji tatoo wala field was also partitioned and he was given his share. The learned trial Judge held that the partition of the tatoo wala field and Bhagwan Singh's entering into the possession of a specified part thereof was not proved by the prosecution. Such conclusions drawn by the learned trial Judge on appreciation of the statements of the prosecution witnesses in this case are quite reasonable when it is noticed that in the FIR (Ex.P5) PW.1 Chota Bai, PW.2 Sahariya, PW.3 Brij Mohan and PW.9 Suganta Bai only were cited as witnesses to the occurrence and they all turned hostile. Such conclusions drawn by the learned trial Judge on appreciation of the statements of the prosecution witnesses in this case are quite reasonable when it is noticed that in the FIR (Ex.P5) PW.1 Chota Bai, PW.2 Sahariya, PW.3 Brij Mohan and PW.9 Suganta Bai only were cited as witnesses to the occurrence and they all turned hostile. Though PW.4 Smt. Urmila Bai was not cited as an eye-witness to the occurrence yet she deposed as an eye-witness in the court at the trial. PW.5 Hari Singh and PW.8 Om Prakash, the son and father respectively, had reached the place of occurrence after the incident. Smt. Urmila. besides being the wife of Om Prakash was the real sister of the deceased and since she had not been named as an eye-witness in the FIR her presence on the spot at the time of occurrence was highly doubtful. Thus, there was the sole testimony of PW.6 Bhagwan Singh himself about the complicity of and part played by the five accused, including the present appellants, in the marpeet. The version given by Bhagwan Singh himself was that his mother Smt. Phoolan Bai and his brothers wife Smt. Parwati Bai had tried to dissuade the deceased from cutting grass from the tatoo wala field and on deceaseds insistence on continuing her act Smt. Phoolan Bai had left to call the present appellants from another field. Since it is not established On record, as stated earlier, that the 'tatoo wala field had been partitioned and a specified part thereof had been given to Bhagwan Singh and the deceased was cutting grass from such portion of that field the lady accused could have restrained and forbidden the deceased from cutting grass from the field. Approaching the place of occurrence with such intention or with such common object, cannot amount to the formation or constitution of an unlawful assembly. It may be noted that from the other field, which was at some distance away from the tatoo wala field, the present appellants, three in number, alongwith their mother, Smt. Phoolan Bai, had reached the place of occurrence as Smt. Parvati Bai had not gone alongwith Smt. Phoolan Bai to call the appellants from their other field.The four did not constitute an unlawful assembly. Bhagwan Singh then stated that as soon as the four had reached the place of occurrence Mukut Bihari appellant gave a blow with his stick called lodi on the head of the deceased and that blow caused the fall of the deceased on the ground and then Prem Chand and Sita Ram appellants gave one blow each on the head of the deceased. This version does not show that Mukut Bihari had acted in prosecution of any common object of causing injuries to the deceased. He is stated to have opened the attack on the deceased as soon as he had reached there and after the fall of the deceased on the ground as a result of the injury sustained by her on her head at the hands of Mukut Bihari appellant, Prem Chand and Sita Ram appellants are stated to have given one blow each on the head of the deceased. Once the deceased had fallen on the ground the top of her head would not remain exposed to any assault thereat unless injury on that part of the head is intentionally caused. The position of the body of the fallen victim would expose the left or right sides of her body or the front or back portion as the case may be, for use of external criminal force against her by her assailant. In the midst of the assault on the deceased, the lady accused cannot be easily accepted to have intervened by blowing the sickle or pelting dhelas on the lying lady. As is evident from the description of the injuries found present on the person of the deceased at the time of conducting autopsy on her dead body by Dr. Johri. the deceased had sustained two injuries with blunt weapon on her head, one injury with a sharp weapon on her left fore-arm near the wrist, one bruise on her chest and one abrasion on her left knee. The last mentioned injury could have possibly been caused by her fall on the ground. The injury with sharp edged weapon could have been sustained, in probability, by her from the sickle of Smt Phoolan Bai in the earlier incident which took place between the deceased and her mother-in-law. Smt. Phoolan Bai and Smt. Parwati Bai. The last mentioned injury could have possibly been caused by her fall on the ground. The injury with sharp edged weapon could have been sustained, in probability, by her from the sickle of Smt Phoolan Bai in the earlier incident which took place between the deceased and her mother-in-law. Smt. Phoolan Bai and Smt. Parwati Bai. On such facts and under such circumstances it was not at all unreasonable on the part of the learned trial Judge to have held that in all probability Mukut Bihari appellant only was the author of the fatal injury to the deceased and that the same act was the individual act of that appellant. Once the facts established on record clearly proved that Mukut Bihari appellant had acted of his own and not either in furtherance of any common intention of himself and the remaining two appellants or in prosecution of a common object of an unlawful assembly, the other appellants or, for that matter, any other member of his party cannot be vicariously held responsible for his individual act. Where an act or omission or a series of acts or omissions are punishable as offence under a statute the doer of the act or omission only is liable to be punished as an offender. The concept of vicarious liability for the act of one upon the other would stand attracted only when such act had been done by the doer either in furtherance of common intention with the other or in order to achieve the common objective of an unlawful assembly. This concept of vicarious liability carves out a sort of exception to the general principle of criminal liability according to which one who does an act or omits to do an act, which is punishable as offence, is liable to suffer for such act or acts of commission or omission. In the instant case, as discussed above, there were good reasons for the learned trial judge to hold that causing fatal injury to the deceased was the individual act of Mukut Bihari appellant only and he only was to suffer for that. That being so, there is no merit in Mr. In the instant case, as discussed above, there were good reasons for the learned trial judge to hold that causing fatal injury to the deceased was the individual act of Mukut Bihari appellant only and he only was to suffer for that. That being so, there is no merit in Mr. Guptas argument that either the evidence of the acts done by the appellants against the deceased was the same or that the fatal injury to the deceased was attributable or could be attributed to Prem Chand and/or Sita Ram as well.The learned trial Judge has clearly held that it was Mukut Bihari, appellant, alone who had caused injuries, including the fatal one to the deceased and, on the basis of the discussion made herein above, we fully agree with the learned Judge in that behalf. All the three appellants did cause simple injuries with blunt weapons to Bhagwan Singh as well but that is no reason to hold, on facts and circumstances of this case, that Prem Chand and Sita Ram had also caused some injuries to the deceased on her head and it was not possible to find out the author of the fatal injury to her. The arguments advanced by Mr. Gupta to the contrary are hereby rejected. 10. Now the pertinent question that arises for our consideration in this case is as to what offence was committed by Mukut Bihari appellant in causing the death of the deceased. Ordinarily once it is held that this appellant was the author of the fatal injury to the deceased he must be held guilty of culpable homicide amounting to murder. In certain cases the causing of single injury to the victim resulting in his death may be indicative of the intention on the part of the assailant to cause his death. Such a case may fair within the ambit of Clause Firstly to Section 300 IPC. Where the offender intentionally causes such bodily injury to the victim which he knows is likely to cause his death, the act of the offender would attract clause Secondly to Section 300 IPC. Still further, if the offender intentionally causes a particular injury to the victim and the injury so caused by him to the victim is sufficient in the ordinary course of nature to cause death, he would still be liable to be punished Under section 300 Clause Thirdly. 11. Still further, if the offender intentionally causes a particular injury to the victim and the injury so caused by him to the victim is sufficient in the ordinary course of nature to cause death, he would still be liable to be punished Under section 300 Clause Thirdly. 11. Way back in Virsa Singhs case ( 1958 SCR 1495 ) the Apex Court held that in order to bring a case under Clause Thirdly to Section 300 IPC the prosecution must prove that (1) a bodily injury was found present on the dead body of the deceased, (2) such particular bodily injury had intentionally been caused by the offender to his victim and (3) such particular bodily injury, so intentionally caused by the offender, was sufficient in the ordinary course of nature to cause death. For applicability of Clause Thirdly to Section 300 IPC intention on the part of the assailant to cause death of his victim is not the requirement. The requirement is the intention to cause that particular bodily injury to the victim which injury is sufficient in the ordinary course of nature to cause death. 12. Going by the facts established in the present case, it is seen that Mukut Bihari appellant had inflicted the particular injury on the fore-head of the deceased which was not only sufficient in the ordinary course of nature to cause death but which did also cause the death of the deceased. The pertinent question for consideration, however, is whether such particular injury had been caused intentionally to the deceased by Mukut Bihari appellant or any of the exceptions enumerated under Section 300 IPC minimises the gravity of the act of violence done by him against the deceased. 13. At the cost of repetition it may be recalled that the grave incident had the origin in a minor scuffle or exchange of hot words between certain ladies hailing from one and the same family. The deceased insisted on her cutting grass from the field wherein existence of her possession does not stand proved on record, instead, the appellants, as held by the learned trial Judge, were in possession thereof. Mukut Bihari appellant and, for that matter, none of the three appellants, were not there at the relevant time. They were working at other field at a distance. Mukut Bihari appellant and, for that matter, none of the three appellants, were not there at the relevant time. They were working at other field at a distance. Their mother, Smt. Phoolan Bai had approached them and lodged her complaint with them against the deceased. Dispute over the Tatoo Wala' field, wherein the deceased was cutting grass, was already there between the parties. According to Bhagwan Singh some violent incident over the possession of that field had already taken place between him and the appellants in the past. Insistence of the deceased on cutting grass from the said field could have irritated or enraged Mukut Bihari appellant. It was under the aroused feelings of irritation at the conduct of the deceased that Mukut Bihari and other appellants appears to have reached the place of occurrence and in such heated moments the said appellant further appears to have lost no time in opening an assault on the deceased. At that time the deceased might be, possibly, in standing position facing the incoming assailant as the sustaining of the first blow on the frontal bone of her head may reasonably suggest. On such facts it appears reasonable to hold that injuries to the deceased were caused by Mukut Bihari without any pre-meditation in a sudden fight in the heat of passions upon a sudden quarrel having erupted between the ladies on the two sides and that the appellant had not taken undue advantage or acted in a cruel or un-usual manner. 14. That apart, it is also doubtful that Mukut Bihari appellant had intentionally caused the fatal injury to the deceased. Presence of the fatal injury on the head of the deceased, which was undoubtedly caused to her by Mukut Bihari appellant, does not necessarily suggest an intention on the part of that appellant to cause that particular injury to her in those moments of heated passions and loss of self control. In our considered opinion, therefore, the offence committed by Mukut Bihari appellant, against the deceased, amounts to culpable homicide not amounting to murder punishable Under section 304 IPC. 15. Question arises as to which part of Section 304 IPC is applicable to the facts and circumstances of the present case. In our considered opinion, therefore, the offence committed by Mukut Bihari appellant, against the deceased, amounts to culpable homicide not amounting to murder punishable Under section 304 IPC. 15. Question arises as to which part of Section 304 IPC is applicable to the facts and circumstances of the present case. It has been seen above that an intention on the part of appellant to cause death of the deceased or causing such bodily injury to her as Mukut Bihari appellant knew to be likely to cause death of the deceased or his intentionally causing that particular injury on the head of the deceased which was sufficient in the ordinary course of nature to cause death was, possibly, not proved in the facts and circumstances of the present case. The present case, therefore, does not, in our considered opinion, fall within the purview of the First part of Section 304 IPC. But the act of the accused appellant in straight away opening assault on the head of the deceased, may be in the irritated state of his mind or in the heat of passions, must have given him knowledge of the likelihood of the death of the deceased. Knowledge to the appellant of the likely consequences may reasonably be inferred from and attributed to him in the facts and circumstances of the case. Mukut Bihari appellant is, therefore, found to have committed the offence punishable Under section 304 Part-II IPC against Smt. Samudra Bai deceased. 16. In view of the fast changing facet of the concept of peneology for taking into account the plight of the bereaved family of the victim of violent act of an accused, as is clearly exhibited from the anxiety of the Apex Court expressed in the cases of Hari Kishan and State of Haryana v. Sukhbir Singh (the epoch making decision on victomology) reported in AIR 1988 SC 2127 and Dr. Jacob George v. State of Kerala reported in Cr.L.R. (SC) 1994 page 332 , we find ourselves in agreement with Mr. Jacob George v. State of Kerala reported in Cr.L.R. (SC) 1994 page 332 , we find ourselves in agreement with Mr. Agarwala that recourse should be made to the provisions contained in Section 357 of the Code of Criminal Procedure, 1973 to mitigate the irreparable loss caused to Bhagwan Singh, the heir apparent of deceased Smt. Samundra Bai, by awarding suitable amount to him from the total amount of fine by way of compensation, when the offence found proved by the trial court against him, is reduced to a minor offence in which case the desirability of enhancing the amount of fine imposed on him should arise. We would direct accordingly. 17. In the result, the conviction of all the three appellants for offence punishable under section 323 IPC is confirmed and their appeal in that behalf is dismissed. 18. The conviction of the appellant Mukut Bihari for the offence Under section 302 IPC is altered to one Under section 304 Part-II IPC and consequently the sentence of imprisonment for life awarded to him for the offence Under section 302 IPC is set aside and, instead, he is sentenced Under section 304 Part-II IPC to rigorous imprisonment for six years and a fine of Rs. 25,000/- (Twenty Five Thousand) only or in case of default in making payment of the said amount of fine, to undergo further R.1. for one year. In the event of his making payment of the aforesaid amount of Rs. 25,000/-, a sum of Rs. 20,000/- (Rs. Twenty Thousand) shall be paid to P.W.6 Bhagwan Singh by way of compensation and rest of the amount shall go to meet the cost of this litigation. The fine of Rs. 100/- imposed on him Under section 302 IPC shall be considered to have been substituted by and included in the aforesaid amount of Rs. 25,000/- (Twenty Five Thousand). The appeal of Mukut Bihari, appellant in respect of offence Under section 302 IPC shall be considered as partly allowed. *******